Substantial Gainful Work And Periods Of Remission

[deltaj]

This is a really interesting, favorable case that was decided in the Federal Circuit on November 21, 1996. The case citation is 100 F3d 1389 Gregory Andler v. Shirley Chater, Commissioner of Social Security. The Federal Circuit seemed to state that an error was made in failing to consider that the periods that Gregory Andler worked and exceeded the poverty threshold were periods where his mental illness was in remission between hospitalizations. The Court stated these periods where the veteran worked during 2 summers should have been viewed as unsuccessful work attempts and ordered that he be considered disabled. I can see the applicability of this to my husband's case because when he tried to work in 1990 he was between hospitalizations yet V.A. only considered his wages from 1990 in the decision.

Could someone put up a link to this case?

[Testvet]

Cruinthe,

If your receiving 100 % VA disability and housebound

then don't come on Hadit posting about how you will get a job

and stay under the VA radar.

That is nothing but pure fraud and it is not condoned here

or any other veterans/disability web site that I know of.

You need to check yourself and become grateful for all the good you have.

It's people with a mindset equal to yours that help make the VBA process

so difficult for others ... people like you that are never satisfied

with what they have and sit around thinking up ways to get more,

greedy scammers.

If you decide to post anything like this again, you will be banned.

carlie

well stated Carlie I am one of those married 100% veterans that my wife doesn't even work because I need transportation for my appts I have basically turned her into a full time medical aide, and we live quite well on our benefits and yes we have bought a house and a 2008 Chrysler so to tell me that a married veteran can NOT live on VA compensation is pure BS many of us do it yes life was pure hell before we got granted the 100% rating and we spent part on a year living in a room at my uncles house waiting on SSD to be approved we drove the same car for 12 years before we bought the used Chrysler a year ago but a 100% disabled vet can live quite well on what the VA gives us no we will never be rich but no one promised me Park Ave anyway.....I never had it at anytime in my life before or after the Army....

[jerrbilly]

Hey, this isn't right since the Vet was working full-time at the SAME TIME he was "APPLYING" for IU (please see below where I underlined). He hadn't even started getting his IU yet and was already working full-time so he shouldn't have been awarded IU to begin with.

Of course the VA threatened to revoke IU for being dishonest.

Jerr

Anyhow, there is some research on this over at veteransparty.us that says;

About 4-years ago, a Veteran was referred to me for assistance. He had been rated at 70% for many years but then eventually was "awarded" 100% TDIU which he had been collecting for a couple of years. He showed me a letter from the VA saying that records they received from the IRS and Social Security Administration reflected that the Veteran had been working for about 4-months during the period he applied for a "Total Disability Rating", and therefore, the VA was going to revoke his 100% TDIU and return him to 70% service-connected compensation, unless he could site a legal reason why the VA should not. So I researched 38 CFR (Code of Federal Regulations) and 38 USCS (United States Code Service) and found the legal reason why the VA could not revoke his "Total Disability Rating."

The legal reason why the VA could not revoke his "Total Disability Rating" lies in 38 USCS Section 1163, of which I paraphrase as follows: "The disability rating of a Veteran who begins to engage in a substantial gainful occupation after January 31, 1985, may not be reduced on the basis of the Veteran having secured and followed a substantially gainful occupation unless the Veteran maintains such an occupation for 12 consecutive months.

[broncovet]

Jerr

No offense but I do think he should have been awarded IU because 3 months of employment does not meet the definition of "substantial gainful employment". His employment would be "marginal" and not disqualify him for IU. I am pretty sure the poverty level, below, is about $10,000 per year. His annual income was probably less than $6000 per year, and that would hardly be called substantial gainful employment:

Marginal employment is generally deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Census Bureau as the poverty level for the veteran only. For more information on the U.S. Census Bureau's poverty thresholds, see http://www.census.gov/hhes/www/poverty/threshld.html

[Testvet]

Jerr

No offense but I do think he should have been awarded IU because 3 months of employment does not meet the definition of "substantial gainful employment". His employment would be "marginal" and not disqualify him for IU. I am pretty sure the poverty level, below, is about $10,000 per year. His annual income was probably less than $6000 per year, and that would hardly be called substantial gainful employment:

Marginal employment is generally deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Census Bureau as the poverty level for the veteran only. For more information on the U.S. Census Bureau's poverty thresholds, see <a href="http://www.census.gov/hhes/www/poverty/threshld.html" target="_blank">http://www.census.gov/hhes/www/poverty/threshld.html</a>

I have seen where it stated the vet was working for 4 months at the time IU was awarded and nothing that states how much he was earning either way to indicate if he was earning above or below "poverty level" then again we get back into the "gray area" if the IU is based on "mental" part of being declared IU is the veterans "inability to work" or if a Mental condition is a 100% the criteria to meet the 100% is the veterans inability to work, not part time not full time not at all I know there are "barracks lawyers' that claim these veterans can work and I can usually show you a veteran that is going to have problems with the VARO along the way

I understand the feeling of wanting to do something but for the life of me I can NOT understand veterans that have had to fight for years to get the TDIU or 100% award and as soon as they do they feel the need to supplement their "benefits" and put at risk having them "revoked"

like the person above that declared that with HB and 100% he intended to go to work and if the caught him he was willing to lose the HB benefit that is just outright fraud why put it all at risk CHAMPVA and Chapter 35 benies however if a veteran feels he is able to return to the work force more power to them I have not seen where the VA has a program like SSD does where a disabled person can return to the workforce for up to a year without losing thier benefits but they notify SSD ahead of time and if they work past the 12 month deadline then their SS benefits are terminated I haven't seen or heard of the VA running a similar program but if a disabled veteran feels the urge and capability of returning to work by all means that is what they should do but to risk years of fighting to get the benefits from VA I can not grasp why veterans are bound and determined to make problems when they shouldn't just my two cents

[jerrbilly]

What rubs me the wrong way is in this situation is the Vet hasn't even started receiving IU yet but he's working full-time. Then he gets granted IU at the same time he's working. If he was honest he would have told the VA he's now working and doesn't need IU. This just doesn't chime with me.

Jerr

Jerr

No offense but I do think he should have been awarded IU because 3 months of employment does not meet the definition of "substantial gainful employment". His employment would be "marginal" and not disqualify him for IU. I am pretty sure the poverty level, below, is about $10,000 per year. His annual income was probably less than $6000 per year, and that would hardly be called substantial gainful employment:

Marginal employment is generally deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Census Bureau as the poverty level for the veteran only. For more information on the U.S. Census Bureau's poverty thresholds, see http://www.census.gov/hhes/www/poverty/threshld.html

[broncovet]

Jerr..

I think I will defend this Vet here. This Vet probably applied for IU while he was not working, and it probably took the VA many, many months or years for the VA to "process" this application. Often times, the Vet does not even really know for sure the status of his application..as I did not for years on end. You can not rely on 800 number responses, and I have not always even been able to count on VA's IRIS responses.

Remember the VA is allowed to "deemed deny" an application. That is, the VA can issue a decision on, say, hearing loss, without addressing IU, which, according to some recent decisions, means his IU was denied. I had my IU application simply dropped by the VA without a decision or an apparent explanation.

But lets say that the Veteran was sure the VA was "processing" his IU claim...not knowing whether or not it would ever be approved. The Vet gets an opportunity to try out this job. I think it is very reasonable for the Veteran to not withdraw his IU claim..or even mention to the VA that MAYBE this job will work out and, if so, he would not be eligible for IU. I think it is very reasonable for the Veteran to simply wait to make sure he is not eligible for IU because his job worked out before he reports it to the VA. I do not think the Veteran is required to report to the VA, "Well, I am trying to work here and MAYBE I am not eligible for IU, before he is even getting IU".

Of course, if he was receiving IU, and he was working with "substantial gainful employment" he must report this to the VA. I have enough trouble reporting actually what happens to the VA, without concerning myself with what MIGHT happen in the future.

If the Veteran applied for IU while he was working, that is probably something else altogether. The Veteran signs and dates the application..that is, that he is representing that he was not working on ....... date to ....... date. The Veteran should never lie or deceive the Va about that. That is fraud. And the Veteran does not have a crystal ball and cant predict, with certainty, that he will be working on ......... date. So, he applies for benefits on what has happened, not on what he thinks might happen.

When the Veteran started working, he likely did not know if it would work out or if it just would be "marginal" employment..and he also did not know if he would ever be approved for IU. Veterans are entiltled to all benefits the law allows. The law makes this distinction between "marginal" and "substantial gainful employment".

Edited January 10, 2010 by broncovet